Yesterday, the White House declared "It's Time to Legalize Cell Phone Unlocking". The call was in immediate response to a petition with over 114,000 signatures on it, decrying the Librarian of Congress' decision last October to let lapse an exemption ensuring people who unlocked their phones would not be in violation of the anti-circumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA), 17 USC 1201. The FCC has followed suit, also calling for a change in the law.
Cell phone unlocking is critical. I hold dear the hacker philosophy that tinkering with the devices we own is a fundamental freedom in our technological society. Unlocking helps poorer people, by ensuring perfectly good, older phones remain useful and in circulation for a fraction of the cost of new models. It also helps the environment by keeping those metal-laden handsets out of landfill.
This was a battle that I started in 2006, when I first petitioned the Librarian for the unlocking exemption and won. In 2009, when I was with the Electronic Frontier Foundation, we renewed our request, and won again.
A lot of people deserve credit for bringing this issue this far including our clients in the successful 2006 and 2009 rulemakings -- The Wireless Alliance, Robert Pinkerton, ReCellular, and Flipswap. Let's not forget to thank the CTIA for defeating the exemption in 2012, demonstrating just how screwed up the DMCA exemption proceedings are, thereby sparking public outcry. And of course, Derek Khanna and Sina Khanifar saw an opportunity where others saw defeat, and focused public sentiment into the successful petition process. But I'm going to take a moment here and pat myself on the back for identifying the unlocking issue in 2006 and developing the arguments about why it should be legal. It only took seven years, but the President agrees with me! I am delighted with the White House's response to the petition. The interests of everyday phone users are being placed ahead of profit maximizing by rich telecom providers with lots of lobbyists. This is how democracy is supposed to work. So far.
What comes next? We now have an opportunity to do better than we ever could have done in the rulemaking. Because the rulemaking doesn't allow an exemption for circumvention tools, but only acts of circumvention, entities in the business of unlocking or providing tools for others to unlock have always operated in a fuzzy zone where it was unclear whether and how the DMCA might apply to their assisting phone owners. The exemption helped, but it didn't solve the problem.
There are several paths ahead of us. One is that the FCC could require cellular providers to unlock phones. Chairman Julius Genachowski said yesterday, "The FCC is examining [the unlocking] issue, looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones. I also encourage Congress to take a close look and consider a legislative solution." If the FCC takes up unlocking, hopefully it will also fix the problem of early termination fees and other perversities in the way cellular companies take advantage of consumers.
Another option is congressional action. Senator Amy Klobuchar (D-Minn) says she will propose a law to legalize phone unlocking. Public Knowledge has put out a blueprint for how to fix the problem. Other groups or legislators may soon jump on the bandwagon. The petition's success is a shot in the arm that hopefully will propell unlocking legitimization through the legislative process.
Phone unlocking is an important consumer rights/telecom issue that either the FCC or Congress can resolve with targeted action. But phone unlocking is also an example of how the anti-circumvention provisions of the DMCA need to be fixed more generally. We have seen that law misused to go after companies that make generic printer cartridges, aftermarket garage door openers, and security researchers. Indeed, if we do not fix the DMCA, the next battle probably will be over printer cartridges. The industry is abusing consumers. Companies can try to get around existing case law that exempted after market cartridges from DMCA prohibition by changing the architecture of the printer/cartridge interface. Some have argued that the provision is so broad, it can be used in exactly the same ways as the problematic Computer Fraud and Abuse Act, a dangerously overbroad law used to punish disloyal computer use and violations of terms of service.
The legal cloud over unlocking, printer cartridges and garage door openers are salient reminders of the overbreadth of the DMCA, applied to current familiar technologies. Technology will change, and these same DMCA problems will reoccur. But because the technologies are unfamiliar, and the markets new, we may be less likely to identify the consumer rights issues, to know how much better things would be with a healthy aftermarket. And, the broader problems with the DMCA remain, most importantly the way it delegates to copyright owners the right to prohibit fair uses via impostion of technological locks on cultural goods like music and movies.
In any policy effort, it will take all of us to get something good done. This acheivement requires a coalition of the Freedom to Tinker hackers, the telecom consumer rights groups, and the groundswell of digital citizenry actively opposed to copyright maximalism. Phone unlocking is, as I said, critical. It is also a step along the way to rebalancing a legal doctrine that went horribly awry in 1998.